Courts have generally decided organ and tissue donation cases in light of their understanding that there is a strong public policy (and national consensus) favoring organ and tissue donation. Litigation involving organ and tissue donation primarily involves actions by relatives of decedents who bring suit because tissues have been harvested allegedly without proper consent of the family.

1. Nicoletta v. Rochester Eye and Human Parts Bank, Inc., et al.

Peter Nicoletta, the deceased, was injured in a motorcycle accident and was taken to the defendant hospital. A woman arrived at the hospital, identified herself as Peter Nicoletta’s wife, and signed the emergency room “face sheet” authorizing emergency treatment of her “husband.” She signed the chart “Judy Shufelt,” with “wife” in parentheses following her signature. In fact, however, Ms. Shufelt was not Peter’s wife. While she was not his wife, she had lived with him for ten years and was the mother of his two children. The decedent’s parents arrived shortly thereafter and all were advised that Peter had died. Ms. Shufelt then left the hospital.

Several hours later, Ms. Shufelt returned to the hospital to arrange for the donation of Peter’s organs. The emergency department charge nurse prepared a handwritten document giving permission to have Peter’s eyes removed by the regional Eye Bank. Ms. Shufelt this time signed the form “Judy Nicoletta (wife).” Having received consent, the decedent’s eyes were subsequently removed by the Eye Bank.

Mr. Nicoletta, Peter’s father, brought suit against the hospital and the Eye Bank claiming that the donation was not properly authorized, and that the “good faith” provision of the New York version of the UAGA was not satisfied, and should therefore not provide an affirmative defense (i.e. immunity) for the hospital and the Eye Bank. Since it was clear that Ms. Shufelt did not have the authority to authorize the donation of Peter’s eyes, the real issue in the case was whether the “good faith” provision of the UAGA would provide immunity. In this case, the plaintiff argued that the defendants had not acted in “good faith” in accepting the signature of Ms. Shufelt as authorization, particularly since she had signed documents in the same emergency department, within several hours, with two different names.

The court first took notice of a basic definition of “good faith,” as “honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage.” The next step in the court’s decision, which was crucial, was to rule as to whether the determination of “good faith” was a question of fact, i.e. for the jury, or of law, i.e. for the court. As a general rule, an issue of good faith would be one of fact and to be decided by the jury. In this situation, however, the court found that the legislature had provided an objective standard by which to measure “good faith” and, therefore, the decision was for the court. Having so decided, the court could then consider the defendant’s motion for summary disposition which, if granted, would lead to dismissal of the case, without it ever reaching the jury. The court then found that the defendants had acted in “good faith,” even though the hospital employees knew that Ms. Shufelt had signed the different hospital forms with two different names. The case was dismissed. This case illustrates the power of the “good faith” immunity protection conferred by the UAGA.

2. Georgia Lions Eye Bank Inc. v. Lavent

This 1985 case was brought in Georgia state court by a mother who alleged that corneal tissue had been wrongfully removed from her infant, in violation of her Constitutional right of due process. The infant had died of sudden infant death syndrome and the eyes had been harvested without the consent of the infant’s parents. The parents had not objected to the removal of the tissue, however, they had not been given the opportunity to object in that they were never asked to give consent for the donation and, in fact, had not even been notified that the eyes would be harvested. At issue was the constitutionality of the Georgia cornea removal statute which authorized, under certain specified circumstances, the removal of corneal tissue from a decedent, if no objection had been made by the decedent while alive, or by the next-of-kin after the decedent’s death. The lower court held that the statute was “violative of due process because it deprives a person of a property right in the corpse of his next-of-kin and fails to provide notice and an opportunity to object.” [Remember, as discussed above, “property rights,” per se, in dead bodies are not recognized under common law.]

The opinion of the Supreme Court of Georgia had a strong public policy overtone, a tone that is common in judicial opinions addressing this issue. The court noted that the statute in question had been passed by a “virtually unanimous General Assembly,” and that “before its passage, approximately 25 corneal transplants were performed each year,” while after its passage “more than 1000 persons regained their sight through transplants.” This strong statement of public policy foreshadowed the court’s balancing of the statute’s public benefit against its infringement on an individual’s rights (here the parents of the infant). Near the end of the opinion, the court, in explaining its balancing of interests, quoted a lower court which had said that: “[t]he preservation of the public health is one of the duties devolving upon the State as a sovereign power. In fact, among all the objects sought to be secured by governmental laws, none is more important than the preservation of the public health.”

The court went on to note that, any “quasi”-property right that a relative might have in the body of a decedent, was one that was created by the courts, i.e. common law, and was not a right created by either the United States or Georgia state constitutions. Once the court found that this right was not constitutional, but only a common law right [if present at all], it found no problem in reversing the lower court and upholding the statute since, according to the court, the legislature has every right to modify or abrogate a common law right of action. The statute, which allowed for the harvest of corneas, in some cases without the consent of the next-of-kin or even notice to the next-of-kin, was upheld.

3. Elwayne Glor et. al. V. Dialysis Clinic, Inc DBA Golden State Transplant Service

This 1994 California case involved a woman who received a cadaveric kidney transplant and subsequently died of malignant melanoma, a cancer that was found to have been transmitted through the transplant. The allegation of the plaintiff was that the transplant service was negligent in screening the kidney donor and should have ascertained that the donor potentially had melanoma at the time of her death. The donor had undergone a biopsy three years prior to her death, which had shown a “possible malignant melanoma.” This history, however, was never communicated to the transplant service. In fact, the donor’s husband testified that he and his wife (the donor) had been told, after the biopsy, that the lesion had been benign. The donor had died of an intracerebral bleed and had undergone a CT scan prior to her death. The CT scan report stated that “the pattern of hemorrhage may be secondary to anterior communicating artery aneurysm rupture, although other underlying process such as neoplasm is also possible” (emphasis added). Whether this report was on the donor’s chart for review by the organ procurement or transplant personnel, was in dispute. The plaintiff also contended that there would have been a large scar on the donor’s back from the previous excisional biopsy, which should have raised the suspicion of a previous melanoma. The existence of any such scar was also in dispute at the trial. Finally, the plaintiff contended that the transplant coordinator had a duty to contact the donor’s previous physicians and thereby would have discovered the possible history of melanoma.

A jury found for the defendants in this case, agreeing that the transmission of cancer by organ transplantation was a known risk and that, based on the data available to the transplant coordinator at the time of the organ harvest, there was no breach of the standard of care by the transplant service. Of note is the fact that this trial court did not allow testimony as to the immunity provided for by the UAGA’s “good faith” provision, and refused a jury instruction on the Act. It is not clear what the court’s reasoning was and, had the plaintiff prevailed in the case, this surely would have been an obvious issue for appeal.

4. Hinze v. Baptist Memorial Hospital, Mid-South Eye Bank Sight Restoration, Inc.

In this case, the plaintiff, who was the next-of-kin of the decedent, filed suit alleging the wrongful removal of the eyes of the decedent, in violation of Tennessee’s version of the UAGA. The decedent had been pronounced “dead on arrival” at Baptist Memorial Hospital (“BMH”) and an individual, who represented himself as the decedent’s grandson, gave consent for the removal of the eyes. He signed a standard tissue donation form that was witnessed by two nurses, employees of the defendant hospital, BMH. The person giving consent, however, unbeknownst to the hospital and the Eye Bank, was not in fact the decedent’s grandson, nor authorized in any way to make a tissue donation (he was not actually a relative of the decedent).

The issue of interest here is the Appeals Court’s interpretation of the immunity provision of the UAGA. The Tennessee statute provided for immunity to those acting in “good faith” in the organ donation procedure. The court, at the outset, decided to follow the Nicoletta court, (supra), which had found that the determination of “good faith” was for the court, not the jury (i.e. a question of law). Having decided that the issue was a matter of law (not fact), the court held that both BMH and the Eye Bank had acted in “good faith” and were not liable for any damages. There had been no evidence introduced that either of the defendants had any knowledge of opposition to donation by the decedent prior to his death. In addition, there was no evidence that anyone was a present, i.e. actual relative, who expressed any opposition to the donation. While the individual who gave consent apparently was not “authorized” to do so, the court held that there was no requirement imposed by the UAGA for the hospital or Eye Bank to investigate the individual’s authority to give consent. As in other cases addressing the issue, hospitals and organ procurement agencies are not expected to conduct anything more than the most basic investigation as to the signatory’s assertion of his or her relationship to the decedent.

5. Kelly-Nevils v. Detroit Receiving Hospital

This interesting case considered the immunity provision of the UAGA as adopted in Michigan. In this case, an unidentified man was admitted to the hospital after having suffered a gunshot would to the head. The hospital was not provided with any identification information and the court noted that this was one of hundreds of unidentified victims admitted to this particular hospital every year. The patient was pronounced brain dead but placed on life support. Later, a “clean-cut, young man appeared at the hospital...[and] identified] himself as [the decedent’s] brother and only living relative.” The hospital solicited an organ donation consent from him, although no one attempted to verify the “brother’s” identity. Pursuant to this “consent,” the decedent’s organs and tissue were harvested.

In fact, the decedent had no brother, and was survived only by his mother, who police located three days after the death. She filed suit against the hospital under various theories and the hospital asserted immunity under the “good faith” provision of the UAGA. The court first concluded, in agreement again with the Nicoletta court, that the determination of “good faith” was a matter of law for the court, not an issue of fact for the jury. The court then refused to impose a duty on the hospital to conduct an independent investigation to determine whether an individual, who purports to be authorized to consent to organ donation, does in fact have that authority. In this case, the “brother” clearly was an imposter [?motive], yet no one ever notified the hospital of any opposition to the organ donation (although the decedent’s mother did not, at the time, even know he was dead). The court noted that, to impose any duty of investigation, would frustrate the purpose of the Act since “time is of the essence.” The importance of this issue being decided by the court (i.e. as a matter of law) cannot be over-emphasized. This allows the case to be dismissed by summary disposition at an early stage, before trial, and without the perils and uncertainties of leaving the matter to a jury’s discretion.